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Home My WebLink About2010-09-28 CDRB Packet AGENDA CITY OF MAPLEWOOD COMMUNITY DESIGN REVIEW BOARD Tuesday, September 28,2010 6:00 P.M. Council Chambers - Maplewood City Hall 1830 County Road BEast 1. Call to Order 2. Roll Call 3. Approval of Agenda 4. Approval of Minutes: a. August 24,2010 5. Unfinished Business: 6. Design Review: a. Frost Avenue Bridge 7. Visitor Presentations: 8. Board Presentations: 9. Staff Presentations: a. Green Building Program Presentation - Nick Carver b. Changes to Granting of Variances 10. Adjourn MINUTES OF THE MAPLEWOOD COMMUNITY DESIGN REVIEW BOARD 1830 COUNTY ROAD BEAST, MAPLEWOOD, MINNESOTA TUESDAY, AUGUST 24, 2010 I. CALL TO ORDER Chairperson Ledvina called the meeting to order at 6:01 p.m. II. ROLL CALL Boardmember Jason Lamers Chairperson Matt Ledvina Boardmember Michael Mireau Boardmember Ananth Shankar Vice Chairperson Matt Wise Present Present Present Present Present Staff Present: Michael Martin, Planner III. APPROVAL OF AGENDA Boardmember Shankar moved to approve the agenda as presented. Vice Chair Wise seconded the motion. Ayes all; the motion passed. IV. APPROVAL OF MINUTES a. June 22, 2010 Chairperson Ledvina requested the following changes be made: . Page 2, second paragraph, amend to reflect that Boardmember Mireau commented "... that grass seed..." . Approval of minutes, reflect that a motion was actually seconded by Boardmember Wise; not Boardmember Lamers. Vice Chair Wise moved to approve the minutes of the June 22, 2010, minutes as presented. Boardmember Lamers seconded the motion. Ayes all; the motion passed. August 24, 2010 Community Design Review Board Meeting Minutes 1 V. UNFINISHED BUSINESS None VI. DESIGN REVIEW a. Metro Transit Park-and-Ride Parking Ramp Proposal, Beam Avenue and Southlawn Drive Michael Martin presented the staff report. The following applicant representatives presented and discussed various design elements with the board. . Lindsay Sheppard, Metro Transit, 560 6th Ave N. Minneapolis . Gary Milne Rojek, BTR Architects, 801 Nicollet Mall, Suite 801, Minneapolis . Tom Downs, BKBM Engineers, 5390 Brooklyn Blvd, Brooklyn Center The following visitor addressed the board regarding this issue. . Bob Zick of North Saint Paul Chair Ledvina moved to recommend the Planning Commission approve the site plan dated July 28, 2010, for the Metro Transit parking ramp and park-and-ride facility. Approval is subject to conditions outlined in the staff report as follows: Conditions 1, 2, and 3 as written, condition 4 modified that a parking stall width of 8.5 feet is recommended, condition 5 as written, striking condition #6 as it is already covered in condition 5. Seconded by Boardmember Mireau. 4 ayes, 1 nay, motion passed. Boardmember Shankar voted nay because he opposed the 8.5 foot wide parking stalls. VII. VISITOR PRESENTATIONS Mr. Bob Zick of North Saint Paul again addressed the Board to indicate that he had calculated the number of stalls that would be lost at 9.5 feet wide is only 54 spots out of 1 ,000. He believes the Board should require Metro Transit to explore an alternative way to get the number of stalls they want without granting either variance requested. August 24, 2010 Community Design Review Board Meeting Minutes 2 VIII. BOARD PRESENTATIONS a. Extreme Green Makeover Boardmember Lamers announced that Michael and Michelle Thibedeau were chosen as the winners of the Extreme Green Makeover contest. b. The Shores at Lake Phalen, 940 Frost Avenue Michael Martin, City Planner, reported that, at their last meeting, the City Council voted to approve several of the requests, including design plan lot division, CUP, wetland setback variance and tax increment financing for the site. There are several design review items that will come before the CDRB for approval. The applicant also submitted a tree survey, which will be presented for review by the CDRB. IX. STAFF PRESENTATIONS a. Architectural Guidelines Discussion Mr. Martin presented to the board and facilitated a discussion regarding architectural guidelines. X. ADJOURNMENT The meeting was adjourned by consensus at 8:07 p.m. August 24, 2010 Community Design Review Board Meeting Minutes 3 MEMORANDUM TO: FROM: James Antonen, City Manager Michael Martin, AICP, Planner DuWayne Konewko, Community Development and Parks Director Frost Avenue Bridge September 15, 2010 SUBJECT: DATE: INTRODUCTION Staff brought the Frost Avenue Bridge replacement before the community design review board (CDRB) at its April 27, 2010 meeting to receive comments and feedback on two different design scenarios. Staff used the feedback from the meeting to move forward on this project. BACKGROUND Staff is presenting the Frost Avenue Bridge replacement project to the heritage preservation commission (H PC) at its meeting on September 16, 2010 for final feedback and comments. Staff will also be presenting the bridge project to the CDRB at its September 28, 2010 meeting. Michael Thompson, city engineer, will be at the meeting to facilitate the discussion and gather final feedback before the final design is created. Attached to this report, are the proposed, current designs for the Frost Avenue Bridge. RECOMMENDATION Please come to the CDRB's September 28, 2010 meeting prepared to discuss the Frost Avenue Bridge replacement project. Attachments: 1. Frost Avenue Bridge Design Concept Q L o - o N r..: N '"' ~ . c: .....,t ...... Q) Q.. ro '- ro a.. OJ c .- ro a::: c o '- ~ Q) ...... Q) '- U C o U "' ~ C <lJ E g: o a. E <lJ O\u "0 0 ~ ~ <lJ <U "0.. c ro g:::?; <(4- ~ 0 "' '" o ~ Li:O .-- ...... Q.. 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OJ E -0 <lJ O\u "- "0 0 CO ~ 0 5: -0 ::?; Q. ro <(4- "' '" CO 0 ~ 0 UIO c'i: 0 u MEMORANDUM TO: FROM: James Antonen, City Manager Michael Martin, AICP, Planner DuWayne Konewko, Community Development and Parks Director Green Building Program Presentation-Nick Carver September 13, 2010 SUBJECT: DATE: INTRODUCTION Nick Carver, the Maplewood Assistant Building Official/Green Building Manager, will give a presentation to the community design review board regarding the city's proposed Green Building Program the department plans to implement. Mr. Carver provides the following: INTRODUCTION TO AN EFFECTIVE AND PURPOSEFUL GREEN BUILDING PROGRAM The intent of this program is to present the International Green Construction Code and the National Green Building Standards as the base documents for a responsible jurisdictional "Green Building Program". The content and philosophy of these documents insure an equal understanding of sustainability and cost effective energy saving outcomes for present and future generations. This program allows jurisdictions to lead by example by adopting the "mandatory" option for city buildings and providing an array of incentives to residents and the business community by choosing the "voluntary" option. This program is more than a rating system. It can be used by manufacturers, design professionals, contractors, building departments and jurisdictional leadership. Creating these partnerships leaps ahead of the curve in establishing what is a revolutionary movement in the building environment. Jurisdictions are now able to customize a program to meet geographical and political agendas by using the minimum standards, special jurisdiction requirements and project electives. P:CDRB\Green Building Program Memo_091310 MEMORANDUM TO: FROM: James Antonen, City Manager Michael Martin, AICP, Planner DuWayne Konewko, Community Development and Parks Director Changes to Granting of Variances September 16, 2010 SUBJECT: DATE: INTRODUCTION The Minnesota Supreme Court recently ruled on a case that has changed the long-standing analysis that cities would normally undertake when deciding whether or not to grant variances. At the August community design review board meeting, staff was requested to provide information on the new standards the City of Maplewood and its city council must now consider with the new interpretation of the variance standard. To assist in the discussion, staff has included not only the decisionlcourt opinion where the standard is discussed, but some relevant League of Minnesota Cities (LMC) materials regarding variances and a short analysis done by the LMC's general counsel. Alan Kantrud, the city attorney, has stated that the best decisions made by cities are those that are supported with a clear and well-reasoned record or set of findings - variance decisions now require this analysis. DISCUSSION For many years, cities have been making decisions regarding variances based on the concept that the use in question is reasonable under the circumstances, assuming there is some sort of hardship unique to the property. However, the Minnesota Supreme Court has recently interpreted the statute differently. Krummenacher vs. City of Minnetonka (published July 21, 2010) was a case that had to do with the expansion of a non-conformity. The resident wanted to build a second story onto a garage that was already too close to a neighboring lot, but was nonetheless a legal non-conforming use. While the city granted the variance, saying that the use was reasonable, doing the standard analysis, the litigant who sued got to bring the matter to the Supreme Court. The salient point of the case can be found at the bottom of page twenty of the decision itself: "We are unable to interpret the statutory language to mean anything other than what the text clearly says - that to obtain a municipal variance, an applicant must establish that "the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls.'''' Krummenacher vs. City of Minnetonka, A08-1988 at 20 (emph. added). This analysis from the Supreme Court makes it clear that municipalities are constrained by the language of the statute, which is clear in its directive from the interpretation the court provides. As the law stands, a variance cannot be granted unless it is it is clear that the property owner cannot put the property to any reasonable use without the variance. One of the most important points the city should consider is the notion that you may have a community standard to guide your variance decisions by. Reasonable use is still at least dictated by the community, or at least not defined statutorily. This is important since it provides the city the opportunity to decide what a reasonable use is in instances where the city has clear expectations. If there is no particular goal in mind, then no special attention should be given. In the case of The Shores at Lake Phalen, for example, the city has very clear expectations, many of which are described in the city's plans for the area. In determining whether or not the owner of a property can make a 'reasonable use" of the property, it is incumbent on the city to declare what its expectations are for the area. In the case of The Shores, the city was able to look towards the 2030 Comprehensive Plan to see the type of density that was planned for and more specifically to the Gladstone Master Plan for the type of use expected. Granted, not all areas of the city will have this sort of guidance, but some areas do. Going forward, the city needs to consider variance requests more carefully. The standard has changed: can the property be used in a reasonable manner without a variance from whatever control is being looked at? If the answer is "yes" then the city should not grant the variance. RECOMMENDATION Staff recommends CDRB members review the attached information and come to the September 28, 2010 meeting with any questions or discussion points. Attachments: 1. LMC Summary 2. Case Summary 3. Case itself 4. LMC page/section of variances 5. LMC FAQ Attachment 1 Takenfrom the LMC Bulletin, authored by Tom Grundhoefer, general counsel The court ruling holds cities to a much stricter standard, which considerably limits variance opportunities. (Published Ju121, 2010) The Minnesota Supreme Court recently issued a decision that changed the longstanding interpretation of the statutory standard for granting zoning variances. In the case of Krummenacher v. City of Minnetonka, the Supreme Court narrowly interpreted the definition of "undue hardship" and held that the "reasonable use" prong of the "undue hardship" test is not whether the proposed use is reasonable, but rather whether there is reasonable use in the absence of the variance. This is a much stricter standard, which considerably limits variance opportunities. The decision The City of Minnetonka issued a variance to a residential property owner permitting the expansion of a legal, non-conforming garage. The city, relying on a 1989 Court of Appeals decision, concluded that the grant of the variance was reasonable. The city's decision was challenged by an adjacent property owner. Both the District Court and the Minnesota Court of Appeals agreed that the city's decision was appropriate. On June 24 the Minnesota Supreme Court reversed the Court of Appeals and found the city's decision impermissible. The Supreme Court examined the statutory definition of "undue hardship" in Minnesota Statutes, section 462.357, and concluded that city authority to issue a variance is limited to those very rare cases where the property cannot be put to "a reasonable use" without the variance. This establishes a high threshold for both the city and the property owner when considering variance requests. The Supreme Court reviewed the parallel county authority that allows for a variance in situations of "practical difficulties" or "hardship." The Supreme Court found that the city authority was more limited because it did not contain the "practical difficulties" provision. The court explicitly recognized that it was changing a longstanding standard that cities have relied on in considering variance requests. In particular, the court specifically rejected a 1989 Court of Appeals interpretation of the phrase "undue hardship," which allowed for the grant of a variance in circumstances where the "property owner would like to use the property in a reasonable manner that is prohibited by the ordinance." The Supreme Court stated that "unless and until the Legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance." Impact of the decision Because ofthe far-reaching nature of the decision, there are probably at least four responses that cities should think about-at least until a legislative correction can be achieved: * The city should re-evaluate the criteria that it has historically used in deciding whether or not to grant a variance. The Supreme Court's decision limits a city's discretion. The ruling limits the authority to circumstances where the property owner can demonstrate that there is not a reasonable use ofthe property absent the variance grant. * In circumstances where the city council believes the grant of a variance is appropriate, the city should take great care to make detailed finding describing why the grant of the variance is necessary to provide the property owner with a reasonable use of his or her property. What constitutes a reasonable use of property is not defined and may differ depending on the unique circumstances ofthe property and attributes of various communities. * If a city routinely grants variances, this may be an indicator that it may want to re- examine its zoning code to ensure that standards, setbacks, uses, and other requirements are consistent with the city council's current vision for the community. In short, the court's decision should act as an encouragement to cities to review their land use practices. * Cities may want to build greater flexibility into their existing conditional use permit, planned unit development, and setback regulations to explicitly afford greater latitude to allow "variance-like" approvals under the zoning code. For instance, a city might establish alternative setback requirements to allow for construction that is consistent with neighborhood attributes. Legislative action The restrictive court decision has caused a number of League members to call for a legislative response. The decision, its impact, and a possible legislative response will be discussed in the League's Improving Service Delivery Policy Committee this summer. It is anticipated that the League will support a legislative change to provide cities with greater flexibility-perhaps something similar to the county authority. Attachment 2 Wednesday, February 3, 2010, 9:00 a.m. Supreme Court Courtroom, State Capitol Beat L. Krummenacher, Appellant vs. City of Minnetonka, Respondent, JoAnne K. Liebeler, Respondent - Case No. A08-1988: Respondent JoAnne Liebeler applied to respondent City of Minnetonka for a variance to allow her to build a finished structure, to be used as a family room and yoga and craft studio, on top ofthe flat roof of a detached nonconforming garage on her property. Appellant Beat Krummenacher, one of Liebeler's neighbors, opposed the variance. The city granted the requested variance; Krummenacher appealed to the district court. In connection with his appeal, Krummenacher served Liebeler with written discovery requests, which Liebeler declined to answer. The district court ruled that it would allow Krummenacher to conduct discovery only if the court determined that the city's decision to grant the requested variance was unreasonable, arbitrary, or capricious. In a second order, the district court concluded that the city's decision to grant the variance was not unreasonable, arbitrary, or capricious. The court of appeals affirmed. Three issues are before the supreme court: (1) whether the city's decision to grant the variance was unreasonable, arbitrary, or capricious; (2) whether the city was prohibited from granting the variance by Minn. Stat. 9462.357, subd. 1e(a) (2008), which authorizes municipalities to grant variances from zoning standards when strict enforcement of such zoning standards would cause undue hardship; and (3) whether Krummenacher should have been allowed to conduct discovery during his appeal to the district court from the city's decision. (Hennepin County) Attachment 3 STATE OF MINNESOTA IN SUPREME COURT A08-1988 Court of Appeals Gildea, J. Took no part, Dietzen, J. Beat L. Krummenacher, Appellant, vs. Filed: June 24, 2010 Office of Appellate Courts City of Miunetonka, Respondent, JoAnne K. Liebeler, Respondent. Paul W. Chamberlain, Ryan R. Kuhlmaun, Chamberlain Law Firm, Wayzata, Minnesota, for appellant. George C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar, P.A., Eden Prairie, Miunesota, for respondent City of Miunetonka. James M. Susag, Larkin, Hoffman, Daly & Lindgren Ltd., Bloomington, Miunesota, for respondent JoAnne Liebeler. Susan L. Naughton, St. Paul, Miunesota, for amicus curiae League of Miunesota Cities. I SYLLABUS 1. Although Minn. Stat. 9 462.357, subd. le(a) (2008), restricts the ability of property owners to expand their nonconforming uses, subdivision I e(b) authorizes a mnnicipality to allow an expansion pursuant to ordinance. Because the legislature gave the mnnicipality discretion to authorize the expansion of a nonconforming use, the decision to allow respondent to seek a variance nnder the ordinance to expand a nonconformity was consistent with Minn. Stat. 9 462.357, subd. Ie. 2. Under Minn. Stat. 9462.357, subd. 6, to establish the "undue hardship" required for a variance, a variance applicant must establish that "the property in question cannot be put to a reasonable use" without the variance. 3. Because the municipality applied the wrong standard, a remand for reconsideration of respondent's variance application under the correct standard is appropriate. Reversed and remanded. OPINION GILDEA, Justice. This case involves the decision of respondent City of Minnetonka to grant a variance to respondent JoAnne Liebeler so that she could expand her nonconforming garage. Appellant Beat Krummenacher is Liebeler's neighbor and he challenges the City's decision. The district court upheld the City's variance, and the court of appeals affirmed. See Krummenacher v. City of Minnetonka, 768 N.W.2d 377, 384 (Minn. App. 2009). Because we conclude that the City applied the wrong standard to Liebeler's 2 variance request, we reverse and remand to the City for reconsideration under the correct standard. Liebeler owns property located in Miunetonka. Krummenacher is Liebeler's neighbor to the west. Liebeler's property consists of a 2.4-acre lot, which contains a 2,975-square-foot home and an attached two-car garage. The property also contains a detached flat-roofed garage that a previous owner constructed sometime in the 1940s. The City has an ordinance requiring that the detached garage be set back a minimum of 50 feet from the property's boundary line. Miunetonka City Code 9 300.10. Liebeler's garage was constructed before this ordinance went into effect, and it does not satisfy the setback requirement. Specifically, the garage is nonconforming because it is set back only 17 feet from the front yard lot line. Because the garage was constructed before the ordinance became effective, however, the garage is a permissible nonconformity. On March 31, 2008, Liebeler applied for a variance to expand the detached garage by adding a pitched roof and a second-story room above the garage that could be used as a yoga studio and craft room. Liebeler's proposal was to renovate the garage itself, both to fix its leakage problems and improve its appearance, and also to expand the garage by adding a living space above it. Because adding a second story to the garage would result in a vertical expansion of a nonconforming structure, Liebeler was required, under the Miunetonka City Code, to apply for a variance from the City. 1 See Miunetonka City It appears that Liebeler did not attempt to move the garage to a conforming location because the unusual characteristics of the lot made relocation impracticable. Liebeler's lot is L-shaped with only 45-feet of frontage on the road. Moreover, there is a (Footnote continued on next page.) 3 Code 9300.29.3(g). Liebeler's proposed addition would not alter the footprint of the garage and would comply with the City zoning requirements for a detached garage with respect to maximum height and size. The City's Planning Commission held a public hearing on May 15, 2008, to consider Liebeler's request. Both Liebeler and Krummenacher had an opportunity to present their arguments at that hearing. Liebeler explained that she believed that the flat roof was causing leakage problems and that the structure itself needed to be updated. Krummenacher objected to Liebeler's proposed project, explaining that the added height of the garage would obstruct his view to the east. The Planning Commission approved Liebeler's request for the vanance. The Planning Commission based its decision on the following findings: (1) the denial of a variance would cause "undue hardship" because of the "topography of the site, width of the lot, location of the driveway, and existing vegetation"; (2) the preexisting nonconforming setback was a "unique circumstance"; (3) Liebeler's proposal would comply with the "intent of the ordinance" because it satisfied the "zoning ordinance requirements for a detached garage for maximum height and size" and did not alter the footprint of the garage; and (4) the proposal would not alter the "neighborhood character" because it would "visually enhance the exterior of the garage" and because there was (Footnote continued from previous page.) significant slope immediately behind the garage, making it difficult to move the garage back. 4 another detached garage on a nearby property that was also set back only 17 feet from the road. Krummenacher appealed the Planning Commission's decision to the Minnetonka City Council. The City Council held a public hearing on the variance request on June 30, 2008, at which both sides presented their arguments. After an examination of the record, the City Council upheld the Planning Commission's decision and findings. The City Council found that Liebeler's "proposal is reasonable and would meet the required standards for a variance." The council listed four requirements and found that the variance satisfied those requirements as follows: (I) Undue Hardship: there is an undue hardship due to the topography of the site, width of the lot, location of the driveway and existing vegetation. (2) Unique Circumstance: The existing, non-conforming setback is a circumstance that is not common to every similarly zoned property. (3) Intent of the Ordinance: The improvements would not increase the footprint of the garage, and would comply with the zoning ordinance requirements for a detached garage for maximum height and size. (4) Neighborhood Character: The garage improvements would not alter the character of the neighborhood. The improvements would visually enhance the exterior of the garage. There is also a detached garage on the property to the east that is set back 17 feet from [the street]. Krummenacher then brought suit in district court challenging, among other things, the City's finding of undue hardship. Krummenacher served discovery requests asking for additional documents from the City, but the City objected to providing more than the City's record on the grounds that the case was properly subject to record review. The court declined to order the City to produce the additional documents, and affirmed the 5 City's decision to grant the variance to Liebeler, concluding that the City's decision was not "arbitrary and capricious." Krummenacher appealed to the court of appeals. On appeal, he raised three issues. First, he argued that Minn. Stat. 9 462.357, subd. Ie(a) (2008), prohibits the City from granting a variance to allow the expansion of a nonconfonning use. Krummenacher, 768 N.W.2d at 380-81. Second, he argued that the City's approval of the variance request was "arbitrary and capricious" because Liebeler had failed to meet the "undue hardship" standard of Minn. Stat. 9462.357, subd. 6. See Krummenacher, 768 N.W.2d at 382-84. Last, he argued that the district court erred in refusing to compel additional discovery by the City. See id at 384. The court of appeals affirmed the district court's decision in all respects. We granted Krummenacher's petition for revIew. On appeal to our court, Krummenacher advances the same three arguments he made to the court of appeals. 2 I. We turn first to Krummenacher's argument that Minn. Stat. 9 462.357, subd. Ie, prohibits a mnnicipality from granting a variance that allows for the expansion of a nonconforming structure. Section 462.357, subdivision Ie, provides in relevant part: (a) Any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, 2 On January 26, 2010, Liebeler filed a motion to dismiss, arguing that we should dismiss the case on the gronnds that construction of the expanded garage has been completed, rendering Krummenacher's claims moot. The motion to dismiss is denied. 6 replacement, restoration, maintenance, or improvement, but not including expansion. . . . (b) A municipality may, by ordinance, permit an expansion or impose upon nonconformities reasonable regulations to prevent and abate nuisances and to protect the public health, welfare, or safety. (Emphasis added. i Krummenacher argues that because the plain language of paragraph (a) of subdivision Ie prohibits the expansion of any nonconformity, the City's decision allowing Liebeler to expand her nonconforming garage must be reversed. The City argues that subdivision le(a) restricts the ability of property owners to expand nonconforming uses, but that under subdivision le(b), a municipality is permitted to allow an expansion pursuant to ordinance. The construction of a statute is a question of law that we review de novo. Clark v. Lindquist, 683 N.W.2d 784, 785 (Miun. 2004)4 To interpret a statute, we first assess In its brief, the City cites the 2009 version of section 462. 357, subdivision le(a) which reads: 3 Except as otherwise provided by law, any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion. . . . Miun. Stat. 9462.357 (Supp. 2009) (new language in italics). The "except as otherwise provided" language in this version of subdivision le(a), however, did not become effective until May 22, 2009, which was after the City granted the variance. See Act of May 21,2009, ch. 149, 9 4, 2009 Miun. Laws 2025, 2028. We therefore do not rely on this version of the statute. We apply the 2008 version of subdivision I e, the version of the statute in effect when the variance was granted. 4 Liebeler did not propose to expand the footprint of her garage, and it is undisputed that even as remodeled the garage would still be 17 feet from the yard line. In other (Footnote continued on next page.) 7 "whether the statute's language, on its face, is clear or ambiguous." Am. Family Ins. Group v. Schroedl, 616 NW.2d 273, 277 (Minn. 2000). If the law is "clear and free from all ambiguity," the plain meaning controls and is not "disregarded under the pretext of pursuing the spirit." Minn. Stat. 9 645.16 (2008); Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995) ("Where the intention of the legislature is clearly manifested by plain unambiguous language . . . no construction is necessary or permitted."). The legislature has also stated that it intends the entire statute to be effective. Miun. Stat. 9 645.16 ("Every law shall be construed, if possible, to give effect to all its provisions."). This case is about a structure that does not conform with local land use restrictions. We have recognized that a local zoning ordinance "may constitutionally prohibit the creation of uses which are nonconforming." County of Freeborn v. Claussen, 295 Miun. 96, 99, 203 N.W.2d 323, 325 (1972). As to "existing nonconforming uses," however, these "must either be permitted to remain or be eliminated by use of eminent domain." Id But a local government "is not required" to permit the expansion of such nonconformities. Id Subdivision Ie is consistent with these principles. We read the subdivision in its entirety and give effect to both paragraph (a) and paragraph (b). Miun. Stat. 9 645.16; (Footnote continued from previous page.) words, the scope of the nonconformity would not be expanded if Liebeler' s request were granted. The City nevertheless concedes that the variance sought an "expansion" for purposes of Miun. Stat. 9 462.357, subd. Ie, and we treat it as such for purposes of this opmlOn. 8 see a/so /n re Kenney, 374 N.W.2d 271, 274 (Minn. 1985) CA statute will be construed so as to give effect to all of its parts."). In paragraph (a), the legislature, with certain exceptions not relevant here, prohibits a municipality from ordering the removal of nonconformities.5 Further, the legislature has given property owners the right to repair or replace a nonconformity so long as they do not expand the nonconformity. In other words, as long as the property owner does not expand the nonconformity, she does not need municipal approval to take corrective or remedial action on the nonconformity. But under paragraph (b), if the property owner seeks to expand the nonconformity, the municipality may, by ordinance, permit the expansion. Consistent with the authority the legislature granted to it in paragraph (b) of subdivision Ie, the City has an ordinance that addresses the expansIOn of nonconformities. See Miunetonka City Code 9 300.29(g)(I). This ordinance provides that "an expansion of any non-confonning use may not be done without first obtaining a variance." /d Liebeler's proposed addition to her detached garage required a variance because she proposed to "occup[y] space within a non-conforming area that was previously not occupied. . . vertically." /d. Krummenacher argues that because state law is superior to municipal law, the City caunot grant a variance pursuant to its own ordinance if that variance violates state law. 5 The statute allows the municipality to require a nonconformity to be discontinued when it "is discontinued for a period of more than one year," or "is destroyed by fire or other peril to the extent of greater than 50 percent of its market value, and no building permit has been applied for within 180 days of when the property is damaged." Minn. Stat. 9 462.357, subd. le(a)(l) and (2). 9 See Denney II. City of Duluth, 295 Minn. 22, 26, 202 N.W.2d 892, 894 (1972) ("It is fundamental that a mnnicipality's power to regulate land use by zoning exists by virtue of authority delegated to it by the state."). But Minn. Stat. 9462.357, subd. le(b), grants the City the discretion to permit the expansion of a nonconformity by ordinance. The City provided a mechanism for expansion in section 300.29(g)(I), through a variance application, and Krummenacher makes no argument that Liebeler's request for a variance did not satisfy that section of the City Code. Because the legislature gave the City discretion to authorize the expansion of Liebeler's nonconforming garage, we hold that the City's decision to allow Liebeler to seek a variance nnder the ordinance to expand a nonconformity was consistent with Minn. Stat. 9 462.357, subd. Ie. II. We turn next to Krummenacher's argument that the City's decision must be set aside because it was arbitrary and capricious. Municipalities have "broad discretionary power" in considering whether to grant or deny a variance. VanLandschoot v. City of Mendota Heights, 336 NW.2d 503, 508 (Minn. 1983). We review such decisions "to determine whether the mnnicipality "was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could reasonably support or justify the determination." In re Stadsvold, 754 N.W.2d 323,332 (Minn. 2008) (internal quotation omitted). 10 A. Krummenacher argues that the City's decision was arbitrary and capnclOUS because the City did not apply the proper standard to determine whether Liebeler demonstrated "undue hardship" as defined in Minn. Stat. 9462.357, subd. 6. This provision allows a city to grant a variance "from the literal provisions of the ordinance in instances where their strict enforcement would cause nndue hardship because of circumstances nnique to the individual property under consideration." Minn. Stat. 9462.357, subd. 6. Minnesota Statutes 9462.357, subd. 6, provides a definition of "undue hardship," and that definition requires that three factors be met. Specifically, the statute defines "undue hardship" as meaning, the property in question cannot be put to reasonable use if used nnder conditions allowed by the official controls, the plight of the landowner is due to circumstances nnique to the property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. /d6 To receive a variance, the applicant must show that he or she meets all of the three statutory requirements of the "undue hardship" test. /d In addition to satisfying the "undue hardship" requirement, the statute allows mnnicipalities to grant variances only 6 The Minnetonka City Code has almost identical provisions. Minnetonka City Code 9 300.07.I(a) ("A variance may be granted from the literal provisions of this ordinance in instances where strict enforcement would cause nndue hardship because of circumstances nnique to the individual property nnder consideration and when it is demonstrated that such actions would be consistent with the spirit and intent of this ordinance. Undue hardship means the property in question cannot be put to a reasonable use if used nnder conditions allowed by this ordinance, the plight of the landowner is due to circumstances nnique to the property not created by the landowner, and the variance, if granted, would not alter the essential character of the neighborhood."). 11 "when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance." Id Krummenacher argues that Liebeler's application does not meet any of the requirements for "undue hardship." The first factor a variance applicant must establish to satisfy the statute's definition of "undue hardship" is that "the property in question cannot be put to reasonable use if used under conditions allowed by the official controls." Miun. Stat. 9 462.357, subd. 6; see also Miunetonka City Code 9300.07.1(a). Krummenacher argues that based on the plain and unambiguous language of the statute, a municipality may grant a variance only when the property caunot be put to any reasonable use without it. According to Krummenacher, Liebeler had a reasonable use for her garage without the addition of a yoga studio and craft room-its current use as a storage space for vehicles. Krummenacher argues therefore that the City did not have the statutory authority to grant the variance. The court of appeals rejected this argument, relying on its decision in Rowell v. Board of Adjustment of Moorhead, 446 N.W.2d 917 (Miun. App. 1989), rev. denied (Miun. Dec. 15, 1989). The court in that case interpreted the "undue hardship" section of Miun. Stat. 9462.357, subd. 6, as requiring a variance applicant to show that the "property owner would like to use the property in a reasonable mauner that is prohibited by the ordinance." Id at 922. The City urges that we should embrace the interpretation of "undue hardship" from Rowell, and it appears from the record that the Rowell "reasonable manner" standard is the standard the City used in evaluating Liebeler's request for a variance. The City 12 determined that the expansion of the garage was a reasonable use of the property and that the request met the other requirements of the statute. Specifically, as reflected in the City Council Resolution, the City found that "the proposal is reasonable" and with respect to "undue hardship," that "[t]here is an undue hardship due to the topography of the site, width of the lot, location of the driveway and existing vegetation." The plain language of the statute and our precedent compel us to reject the City's invitation to adopt Rowell's interpretation of "undue hardship." The statute provides that to prove "undue hardship," the variance applicant must show that "the property in question caunot be put to a reasonable use" without the variance. Miun. Stat. 9462.357, subd. 6. Notwithstanding this language, the court of appeals concluded that "[t]his provision does not mean that a property owner must show the land caunot be put to any reasonable use without the variance." Rowell, 446 N.W.2d at 922. The court of appeals essentially rewrote the statute to mean that a municipality may grant a variance when the "property owner would like to use the property in a reasonable mauner that is prohibited by the ordinance." Id. at 922. Although the Rowell "reasonable manner" standard has been used for over 20 years, we simply caunot reconcile that standard with the plain language of the statute. The Rowell standard is also inconsistent with our precedent. In support of the application of a "reasonable manner" standard for determining "undue hardship," Rowell cites Curry II. Young, 285 Miun. 387, 173 N.W.2d 410 (1969), for the proposition that a variance is "required where a setback requirement would force a property owner to build a much smaller structure." Id. at 922. The version of Miun. Stat. 9 462.357 in effect 13 when Curry was decided did not contain the definition of "undue hardship" that is in the current version of the statute. See Minn. Stat. 9 462.357 (1969). Moreover, while we discussed in Curry the dimensions of a structure that could theoretically be built to comply with the statutory requirements, we based our determination that the variance was properly granted on the municipality's ordinance. That ordinance required a showing of "particular hardship," and we concluded that the standard was met because the "plaintiffs' lot, in the absence of a variance, would be unusable for any purpose." Curry, 285 Minn. at 388-89,396,173 N.W.2d at 411,415. The standard we applied in Curryis more rigorous than the "reasonable manner" standard adopted in Rowell, and appears consistent with the plain language of the first part of the "undue hardship" definition that is in the current statute. See Minn. Stat. 9 462.357, subd. 6. In addition, in formulating the "reasonable manner" standard, the court in Rowell appears to have relied on the "practical difficulties" standard7 See Rowell, 446 N.W.2d at 922. But we have made a clear distinction between the "practical difficulties" standard and the "undue hardship" standard. See Stadsvold, 754 N.W.2d at 328-31. As we explained in Stadsvold, the "practical difficulties" standard applies to review of county decisions to grant area variances, while the "undue hardship" standard applies to all 7 In support of the application of this standard, the court of appeals cited Merriam Park Community Council, Inc. v. McDonough, 297 Minn. 285,289-90,210 N.W.2d 416, 419 (1973), overruled on other grounds by Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 868 n.4 (Minn. 1979). As in Curry, the version of Minn. Stat. 9462.357 in effect when Merriam Park was decided did not contain the definition of "undue hardship" that is in the current version of the statute. See 297 Minn. at 289-90, 210 N.W.2d at 418-19 (quoting statute). 14 municipal decisions to grant variances. Id. at 327-28 & n.2. Compare Miun. Stat. 9462.357, subd. 6, with Miun. Stat. 9394.27, subd. 7 (2008)8 In Stadsvold, we interpreted Miun. Stat. 9394.27, subd. 7, which sets forth the statutory standard for county variances. This statute contains both the "practical difficulties" standard and a "particular hardship" standard. Specifically, section 394.27 authorizes a county to grant variances from "the terms of any official control" but only when the property owner would face "practical difficulties or particular hardship" in meeting "the strict letter of any official control." Minn. Stat. 9394.27, subd. 79 We distinguished the "less rigorous 'practical difficulties'" standard that applies to area variance applications from the more rigorous "particular hardship" standard that applies to use variance applications. Stadsvold, 754 N.W.2d at 330-31.10 s While Miun. Stat. 9 462.357, subd. 6, and Miun. Stat. 9394.27, subd. 7, both set forth standards for granting variances, section 462.357, subdivision 6, applies to municipalities and section 394.27, subdivision 7, applies to counties. 9 The same dichotomy of language at issue in Stadsvold existed in the predecessor to the municipal zoning statute, section 462.357. Until 1965, section 462.22 (enacted in 1929, repealed in 1965) granted municipalities the power to vary or modify the application of a zoning regulation where there were "practical difficulties or unnecessary hardship" in complying with the strict letter of the regulation. Minn. Stat. 9 462.22 (1961). In 1965, the legislature replaced Minn. Stat. 9462.22 with Miun. Stat. 9462.357. Act of May 22, 1965, c. 670, 9 7, 1965 Miun. Laws 995, 1000-03. The new statute replaced the "practical difficulties or unnecessary hardship" standard with the current single "undue hardship" standard. Id. "Undue hardship" was undefined in the statute until 1982, when the legislature, borrowing the definition of "hardship" from the county variance statute, Miun. Stat. 9394.27, added the current definition of "undue hardship" to the statute. Act of Mar. 22,1982, ch. 507, 9 22,1982 Miun. Laws 592, 593. 10 As we discussed in Stadsvold, "[t]here are two types of variances: use variances and area variances. 'A use variance permits a use or development of land other than that (Footnote continued on next page.) 15 Adopting the Rowell "reasonable manner" standard would be inconsistent with the distinction we made in Stadsvold between the "practical difficulties" and "hardship" standards. The legislature defined the "hardship" standard in the county statute the same way it defined the "undue hardship" standard in the municipal statute. I I Because the legislature used the same language in both the county and city variance statutes when defining "hardship," our analysis in Stadsvold requires us to conclude that the "undue hardship" standard in Minn. Stat. 9462.537, subd. 6, is more demanding than the "practical difficulties" standard the court of appeals appears to have relied on in Rowell, 446 N.W.2d at 922. Moreover, with respect to the "practical difficulties" standard, we identified in Stadsvold several factors the county should consider in assessing whether that standard was met: (1) how substantial the variation is in relation to the requirement; (2) the effect the variance would have on government services; (3) whether the variance will effect a substantial change in the character of the neighborhood or will be a substantial detriment to neighboring properties; (4) whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) how the practical difficulty occurred, including (Footnote continued from previous page.) prescribed by zoning regulations.' . . . An area variance controls 'lot restrictions such as area, height, setback, density and parking requirements.'" 754 N.W.2d at 329 (quoting In re Appeal of Kenney, 374 N.W.2d 271,274 (Miun. 1985)). II " 'Hardship' as used in connection with the granting of a variance means the property in question caunot be put to a reasonable use if used under the conditions allowed by the official controls; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality." Miun. Stat. 9394.27, subd. 7. 16 whether the landowner created the need for the variance; and (6) whether, in light of all of the above factors, allowing the variance will serve the interests of justice. 754 N.W.2d at 331 (footnote omitted). Rowell's interpretation of the "undue hardship" standard, requiring only that the proposed use be "reasonable," would render the "undue hardship" standard in section 462.357 less stringent than the "practical difficulties" standard and much less stringent than the "particular hardship" standard in the county variance statute, which the "undue hardship" standard appears to parallel. See Stadsvold, 754 N.W.2d at 331. In short, our analysis in Stadsvold simply does not leave room for the Rowell "reasonable manner" standard. 12 12 The City argues that, even if Rowell was based on an erroneous reading of the text of section 462.357, subdivision 6, the standard in Rowellhas been used by municipalities for many years in determining whether to grant a variance. See, e.g., Mohler v. City of St. Louis Park, 643 N.W.2d 623,631 (Miun. App. 2002); Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000); Sagstetter II. City of St. Paul, 529 N.W.2d 488,492 (Miun. App. 1995). The City suggests that, because the legislature has amended section 462.357 many times since Rowell and has not disturbed the court of appeals' interpretation of the "undue hardship" standard, we should treat the legislature as having ratified the Rowell standard. But the legislature has provided that "[w]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language." Minn. Stat. 9 645.17(4) (2008). The court of appeals is not "a court of last resort." See Anderson-Johanningmeier v. Mid-Minnesota Women's Ctr., Inc., 673 N.W.2d 270, 276 (Miun. 2002) (stating that the court of appeals is not the court of last resort with respect to statutory construction). Nor does the denial of a petition for review give a court of appeals decision more precedential value than a court of appeals decision from which no review was sought. Murphy v. Milbank Mut. Ins. Co., 388 N.W.2d 732, 739 (Miun. 1986). We therefore reject the City's argument that the legislature has ratified the Rowell standard. 17 We recognize that the standard we apply today, while followed elsewhere, is not the universal rule. 13 For example, in Simplex Technologies, Inc. v. Town of Newington, 766 A.2d 713 (N.H. 2001), the New Hampshire Supreme Court provided a thorough and insightful review of the development of land use variance law, and its practical construction in modem times. The New Hampshire statute did not contain a specific definition of "unnecessary hardship," like our statute does, and the court concluded that its prior definition of the statutory term "unnecessary hardship" "ha[d] become too restrictive in light of the constitutional protections by which it must be tempered." Id at 717. The New Hampshire Supreme Court framed the issue in the following terms: Inevitably and necessarily there is a tension between zoning ordinances and property rights, as courts balance the right of citizens to the enjoyment of 13 While most jurisdictions use the phrase "unnecessary hardship" rather than "undue hardship" as the applicable standard, many jurisdictions appear to require that the variance applicant establish real hardship if the variance is denied rather than simply requiring that the applicant show the reasonableness of the proposed use. See, e.g., Larsen v. Zoning Bd. of Adjustment of Pittsburgh, 672 A.2d 286, 290-92 (Pa. 1996) (holding that the "mere desire to provide more room for a family member's enjoyment" is insufficient to constitute "unnecessary hardship" under the statute and requiring applicants to show that, if the variance request is denied, the property will be "practically useless"); OK Properties v. Zoning Bd. of Review of Warwick, 601 A.2d 953, 955 (R.!. 1992) ("The court has determined that unnecessary hardship exists when restricting the property to the permitted uses within the zoning ordinance will deprive the property owner of all beneficial use of the property and that granting a variance becomes necessary to avoid an indirect confiscation of the property."); Cochran v. Fairfax County Board of Zoning Appeals, 594 S.E.2d 571, 577 (Va. 2004) ("[T]he [Board of Zoning Appeals] has no authority to grant a variance unless the effect of the zoning ordinance, as applied to the piece of property under consideration, would, in the absence of a variance, interfere with all reasonable beneficial uses of the property, taken as a whole.") (internal quotation marks omitted); 3 Anderson's Law of Zoning 920.16 (Keuneth H. Young ed., 4th ed., 1996) (describing different states' approaches to the "unnecessary hardship" standard and suggesting that most states give the term a fairly restrictive construction). 18 private property with the right of municipalities to restrict property use. In this balancing process, constitutional property rights must be respected and protected from unreasonable zoning restrictions. Id at 716-17. In light of these considerations, the New Hampshire Supreme Court said that "unnecessary hardship" would, in the future, be established when a landowner showed that (I) a zoning restriction as applied interferes with a reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others. Id at 717.14 Had the Minnesota Legislature not defined "undue hardship" in Miun. Stat. 9462.357, subd. 6, we might consider the approach articulated in Simplex 15 A flexible variance standard allows municipalities to make modest adjustments to the detailed application of a regulatory scheme when a zoning ordinance imposes significant burdens on an individual, and relief can be fashioned without harm to the neighbors, the community, or the overall purposes of the ordinance. See David W. Owens, The Zoning Variance: Reappraisal and Recommendations for Reform of a Much-Maligned Tool, 29 Colum. J. Envtl. L. 279, 317 (2004) ("If the variance power is to be used both as a 14 These standards were subsequently codified. See N.H. Rev. Stat. Ann. 9 674:33 (Supp. 2009). 15 The factors set forth in Simplex are not dissimilar to the factors we embraced in Stadsvold in construing "practical difficulties." See 754 N.W.2d at 331 (discussing factors for consideration under the "practical difficulties" standard). 19 constitutional safeguard and as a tool for flexibility, zomng enabling acts and local ordinances should be amended to delineate these two purposes and set different standards for each. The failure to make such a distinction underlies much of the past controversy regarding variances. Courts and commentators have traditionally viewed the variances as the former-a very limited tool for avoidance of constitutional infirmity in extraordinary cases. Most variance petitions, and consequently most board of adjustment decision- making, have viewed the variances as the latter-a tool to provide flexible implementation rather than constitutional infinnity."). We recognize that the Rowell "reasonable mauner" standard represents a longstanding interpretation of the undue hardship standard in Miun. Stat. 9 462.357, subd. 6, and that Miunesota municipalities have been granting variances under the "reasonable mauner" standard for many years. We also recognize that our decision will result in a restriction on a municipality's authority to grant variances as compared with the "reasonable mauner" standard. But whatever value we may find in a more flexible standard, particularly with regard to area variances, we caunot ignore the plain language of the statute. See State v. Peck, 773 N.W.2d 768, 773 (Minn. 2009) ("We have no opportunity to ignore part of the legislature's definition."). We are unable to interpret the statutory language to mean anything other than what the text clearly says-that to obtain a municipal variance, an applicant must establish that "the property in question caunot be put to a reasonable use ifused under conditions allowed by the official controls." Minn. Stat. 9462.357, subd. 6. Therefore, unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the 20 language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property caunot be put to a reasonable use without the variance. Based on the plain language of the statute, and our precedent interpreting language similar to "undue hardship" in the context of a local government's authority to grant variances, we reject the "reasonable manner" standard from Rowell. We hold that the City inaccurately applied the first factor in the "undue hardship" definition of Minn. Stat. 9 462.357, subd. 6. Our resolution of this issue makes it unnecessary for us to resolve the other issues Krummenacher raises on appeal. B. Having concluded that the City applied the law incorrectly, we must address the remedy. In cases where a variance has been denied, the general rule is that "[i]f the zoning authority's decision is arbitrary and capricious, the standard remedy is that the court orders the permit to be issued." Stadsvold, 754 N.W.2d at 332; see also In re Livingood, 594 N.W.2d 889, 895 (Miun. 1999). But there is an exception to this general rule "when the zoning authority's decision is premature and not necessarily arbitrary." Stadsvold, 752 N.W.2d at 333 (internal quotation omitted). For example, in Earthburners, Inc. v. County of Car/ton, where it was unclear whether the zomng authority had applied the relevant statutory provisions, we remanded to the zomng authority for "renewed consideration" under the appropriate standard. 513 N.W.2d 460, 463 (Miun. 1994). 21 Similarly, in Stadsvold, we remanded a variance application to the county board because the board applied the wrong standard: The Board, using an "adequate hardship" standard, did not consider practical difficulties. The Stadsvolds argue the Board's decision was therefore arbitrary and capricious. The Board did not have the benefit of our holding in this case regarding "practical difficulties." We cannot tell whether the Board's decision was arbitrary and capricious. Therefore, remand is required to allow the Board to consider the Stadsvolds' variance application in light of our holding that applications for area variances are to be considered using the "practical difficulties" standard in Miun. Stat. 9394.27, subd. 7. Stadsvold, 754 N.W.2d at 332. Our precedent therefore supports the conclusion that a property owner is entitled to have his or her variance application heard under the correct legal standard, which supports a remand in this case. A remand is particularly appropriate in this case because a property owner seeking to utilize her property should not be penalized due to the City's application of the wrong legal standard. We reverse and remand the matter to the City for renewed consideration of Liebeler's variance request in light of our rejection of the "reasonable manner" standard from Rowell. Reversed and remanded. DIETZEN, J., took no part in the consideration or decision of this case. 22 Minn. Stat. s 462.354, subd. 6. Myronv. CityofPlymouth.56-2 N.W.2d21 (Minn. Ct App. Apr, 15, 1997), affd, 581 N.W.2d815 (Minn. 1998) overruled on other gr()Uflds by Wensmann Realty, inc. v. Ciiy of Eagan, 734 N.W.2d 623 (Minn. 2007). City of Maple-wood v. Valiuluss, 1997 WL 53031, CO-96-1468 (Minn. CL App. Feb 11, 1997), Mohler v. City olSt. Louis Park, 643 N,W.2d 623 (Minn, Cl, App.2oo2). No/an v. City of Eden Prairie, 610 N.W.2d697 (Minn. Cl. App, 2000). Graham v. liasca County Planning Comm'n, 601 N,W2d 461 (Minn. Q,App, 1999), Stotts v. Wright Coun.l}', 478 N.W.2d 802 (Minn. Ct. App. 1992), Attachment 4 CHAPTER 14 2. Variances Variances are an exception to rules laid out in a zoning ordinance. They are permitted departures from strict enforcement of the ordinance as applied to a particular piece of property if strict enforcement would cause the owner "undue hardship." Variances are generally relate to physical standards (such as setbacks or height limits) and may not be used to allow a use that is prohibited in the particular zoning district. Essentially, variances allow the landowner to break the rules that would otherwise apply The law provides that requests for variances are heard by the board of adjustment and appeals; in many smaller communities, the planning commission serves that function. Generally, the board's decision is subject to appeal to the city council. Under the statutory undue hardship standard, a landowner is entitled to a variance if, and only if, the facts satisfy the three- factor test for undue hardship, which are: . The property cannot be put to a reasonable use without the variance. . The landowner's situation is due to circumstances unique to the property not caused by the landowner. The uniqueness generally relates to the physical characteristics of the particular piece of property and economic considerations alone cannot create an undue hardship. . The variance, if grauted, will not alter the essential character of the locality. This factor generally contemplates whether the resulting structore will be out of scale, out of place, or otherwise inconsistent with the surrounding area. Variances are to be granted only if strict enforcement of a zoning ordinance causes undue hardship. A landowner who purchased land knowing a variance would be necessary in order to make the property buildable is not barred from requesting a variance on the grounds the hardship was self-imposed. In granting a variance, the city may attach conditions, but the conditions must be reasonable and bear some relationship to the purpose of the variance. Broad discretion is permitted when denying a request for a variance, but there must be legally sufficient reasons for the denial. The Board must make findings concerning the reasons for the denial or approval and the facts upon which the decision was based. The findings must adequately address the statutory requirements. Best practice suggests seeIcing specific legal advice from the city attorney before making decisions on requests for variances. An applicant fur a variance is not entitled to a variance merely because similar variances were granted in the past. HANDBOOK FOR MIi'i""NESOTA CITIES 14:19 This chapter last revised 12J200s Mohlerv. CityofSt. Louis Park, 643 NW.2d623 (Minn. Ct App,2002).. Minn, Stat. .462.357, suM 6. Kismet Investors v. County of Renton, 617 N.W.2d 85 (Minn. 2000), Chase v. City of Minneapolis, 401 N.W.2d 408 (Minn. 1981). Rose Cliff Landscape Nursery v. City of Rose mount, 461 N.W.2d 641 (Minn. CtApp. 1991). Stodolav. CityofOrono, 1994 WL 212900, 0.93-2445, (MimL Ct. App. 1994). Minn. Stat. .462.3595. Minn. Stat ~ 462.3595, sublt 2. Trisko v. Cityo/Waite Park. 5-66 N.W.2d 349 (Minn. et. App. 1997), In re Livingood, 594 N,W.2d 8S9 (Millli, 1999), CHAl'TER 14 Error by city staff in approving plans does not constitute undue hardship entitling a person to a variance. While the result might be harsh, a municipality cannot be estopped from correctly enforcing a zoning ordinance even if the property owner relies to his or her detriment on prior city action. No use variance may be granted if the use is prohibited in a zoning district. A city may grant use variances when a use is not prohibited in the zoning district, but the use is limited by another portion of the zoning ordinance. The requirements of unusual hardship and other statutory requirements still apply to use variances. G. Specific uses 1. Permitted uses Permitted uses are those that the zoning ordinance allows, It is generally arbitrary and unlawful to deny a building permit for a permitted use unless the zoning of the property is subsequently changed to prohibit that use. 2. Accessory uses Accessory uses are those uses that cannot stand alone and must be accompanied by a principal, permitted use. For example, a garage may be an accessory use in a residential area. "-. ---~ 3. Conditional uses Conditional uses are those activities that the zoning ordinance permits if certain conditions (that the council determines or the zoning ordinance specifies) are met. The city must grant the conditional use permit (CUP) if the applicant satisfies all the conditions. Conditional uses remain in effect indefinitely as long as the use complies with the conditions. Note: Before a CUP is granted, a city must provide notice and a public hearing. A notice of the time, place and purpose of the hearing must be published in the official newspaper of the municipality at least ten days prior to the day of the hearing. A certified copy of the CUP must be recorded with the county recorder or the registrar of titles, and must include a legal description of the land An applicant for a CUP is entitled to one when the controlling land use ordinances authorize the use, and there is evidence of the need for the permit. Neighborhood opposition, alone, does not authorize the rejection of an application for a CUP. When a local govennnent deuies a landowner a CUP without sufficient evidence to support its decision, a court can order the issuance of the permit subject to reasonable conditions. '~/ 14:20 HANDBOOK FOR MINNESOTA CmES This chapter last revised 1212008 Attachment 5 00 LEAGUE OF MINNESOTA CITIES CONNECTING & INNOVATING STNCEl913 VARIANCES Frequently Asked Questions What is a variance? A variance is a way that a city may allow an exception to part of a zoning ordinance. It is a permitted departure from strict enforcement of the ordinance as applied to a particular piece of property. A variance is generally for a dimensional standard (such as setbacks or height limits). A variance allows the landowner to break a dimensional zoning rule that would otherwise apply. Who grants a variance? Minnesota law provides that requests for variances are heard by a body called the board of adjustment and appeals; in many smaller communities, the planning commission or even the city council may serve that function. A variance decision is generally appealable to the city council. For more information, see Minn. Stat. ~ 462.357. When can a variance be granted? A variance should be granted if strict enforcement of the zoning ordinance as applied to a particular piece of property would cause the landowner "undue hardship." The landowner is generally entitled to the variance if and only if the applicant meets the statutory three- factor test for undue hardship. Ifthe applicant does not meet all three factors ofthe statutory test, then a variance should not be granted. For more information, see Minn. Stat ~ 462.357. What kind of authority is the city exercising? A city exercises so-called "quasi-judicial" authority when considering a variance application. This means that the city's role is limited to applying the legal standard of undue hardship to the facts presented by the application. The city acts like a judge in evaluating the facts against the legal standard. Ifthe applicant meets the standard, then the variance should be granted. In contrast, when the city writes the rules in zoning ordinance, the city is exercising "legislative" authority and has much broader discretion. What is undue hardship? Undue hardship is a legal standard set forth in law that cities must apply the when considering applications for variances. It is a three-factor test and applies to all requests for variances. To constitute undue hardship, all three factors ofthe test must be satisfied. For more information, see :t\finn. Stat. i:i 462.357. This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. LEAGUE OF MINNESOTA CITIES INSURANCE TRUST 145 UNIVERSITY AVE. WEST PHONE: (651) 281-1200 FAX: (651) 281-1298 ST. PAUL, MN 55103-2044 TOLL FREE: (800) 925-1122 WEB: WWW.LMCORG What are the undue hardship factors? The first factor is that the property cannot be put to a reasonable use without the variance. This factor means that the landowner would like to use the property in a particular reasonable way but cannot do so under the rules ofthe ordinance. It does not mean that the land cannot be put to any reasonable use whatsoever without the variance. For example, if the variance application is for a building too close to a lot line, or does not meet the required setback, the focus of the first factor is whether the request to place a building there is reasonable. The second factor is that the landowner's problem is due to circumstances unique to the property not caused by the landowner. The uniqueness generally relates to the physical characteristics of the particular piece of property, that is, to the land, and not personal characteristics or preferences ofthe landowner. When considering the variance for a building to encroach or intrude into a setback, the focus of this factor is whether there is anything physically unique about the particular piece of property, such as sloping topography or other natural features like wetlands or trees. The third factor is that the variance, if granted, will not alter the essential character ofthe locality. Under this factor consider whether the resulting structure will be out of scale, out of place, or otherwise inconsistent with the surrounding area. For example, when thinking about the variance for an encroachment into a setback, the focus is how the particular building will look closer to a lot line and ifthat fits in with the character ofthe area. What about economic considerations? Sometimes landowners insist that they deserve a variance because they have already incurred substantial costs or argue they will not receive expected revenue without the variance. State statute specifically notes that economic considerations alone cannot create an undue hardship. Rather, an undue hardship exists only when the three statutory factors are met. Can a city grant a use variance? Sometimes a landowner will seek a variance to allow a particular use oftheir property that would otherwise not be permissible under the zoning ordinance. Such variances are often termed "use variances" as opposed to "area variances" from dimensional standards. Use variances are not generally allowed in Minnesota-state law prohibits a city from permitting by variance any use that is not permitted under the ordinance for the zoning district where the property is located. For more information, see Minn. Stat. ~ 462.357. Is a public hearing required? Minnesota statute does not clearly require a public hearing before a variance is granted or denied, but many practitioners and attorneys agree that the best practice is to hold public hearings on all variance requests. A public hearing allows the city to establish a record and elicit facts to help determine ifthe application meets the undue hardship factors. What is the role of neighborhood opinion? Neighborhood opinion alone is not a valid basis for granting or denying a variance request. While city officials may feel their decision should reflect the overall will ofthe residents, the task in considering a variance request is limited to evaluating how the variance application meets the statutory undue hardship factors. Residents can often provide important facts that may help the city in addressing these factors, but unsubstantiated opinions and reactions to a request do not form a legitimate basis for a variance decision. If neighborhood opinion is a significant basis for the variance decision, the decision could be overturned by a court. What is the role of past practice? While past practice may be instructive, it cannot replace the need for analysis of all three ofthe undue hardship factors for each and every variance request. In evaluating a variance request, cities are not generally bound by decisions made for prior variance requests. If a city finds that it is issuing many variances to a particular zoning standard, the city should consider the possibility of amending the ordinance to change the standard. When should a variance decision be made? A written request for a variance is subject to Minnesota's 60-day rule and must be approved or denied within 60 days ofthe time it is submitted to the city. A city may extend the time period for an additional 60 days, but only if it does so in writing before expiration ofthe initial 60-day period. Under the 60-day rule, failure to approve or deny a request within the statutory time period is deemed an approval. For more information, see Minn. Stat. ~ 15,99. How should a city document a variance decision? Whatever the decision, a city should create a record that will support it. In the case of a variance denial, the 60-day rule requires that the reasons for the denial be put in writing. Even when the variance is approved, the city should create or direct that a written statement explaining the decision. The written statement should explain the variance decision, address each of the three undue hardship factors and list the relevant facts and conclusions as to each factor. Can meeting minutes adequately document a variance decision? If a variance in denied, the 60-day rule requires a written statement of the reasons for denial be provided to the applicant within the statutory time period. While meeting minutes may document the reasons for denial, usually a separate written statement will need to be provided to the applicant in order to meet the statutory deadline. A separate written statement is advisable even for a variance approval, although meeting minutes could serve as adequate documentation, provided they include detail about the decision factors and not just a record indicating an approval motion passed. Can a city attach conditions to a variance? By law, a city may impose conditions when it grants variances to insure compliance and to protect adjacent properties. Any such conditions should relate back to the subject of the variance request. For instance, if a variance is granted to exceed an otherwise applicable height limit, any conditions attached should presumably relate to mitigating the affect of excess height. For more information, see Minn. Stat. ~ 462.357. What happens to the variance once granted? A variance once issued is a property right that "runs with the land" so it attaches to and benefits the land and is not limited to a particular landowner. A variance is typically filed with the county recorder. Even ifthe property is sold to another person, the variance applies. 3